Solomon v de Silva & Anor [2000] NSWSC 811

New South Wales Supreme Court

CITATION : Solomon v de Silva & Anor [2000] NSWSC 811 CURRENT JURISDICTION: Common Law Administrative Law List FILE NUMBER(S) : SC 30042/00 HEARING DATE(S) : 15 August 2000 JUDGMENT DATE : 17 August 2000

Lionel Solomon (Plaintiff) v PARTIES : Chandra de Silva (First Defendant) Residential Tribunal (Second Defendant)

JUDGMENT OF : Master Malpass

LOWER COURT Residential Tribunal JURISDICTION : LOWER COURT 00/18301 FILE NUMBER(S) : LOWER COURT G R Keenan JUDICIAL OFFICER :

COUNSEL : N/A In Person (Plaintiff) SOLICITORS : Nan Solicitors (First Defendant) No appearance (Second Defendant) CATCHWORDS : Appeal from Tribunal - no error of law - no question of principle. LEGISLATION CITED : N/A CASES CITED : N/A DECISION : See paragraph 11.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

MASTER MALPASS

THURSDAY 17 AUGUST 2000

30042 of 2000 LIONEL SOLOMON v CHANDRA de SILVA JUDGMENT 1 The first defendant is the owner of premises known 1446 Pacific Highway, Turramurra. Mr & Mrs Solomon have occupied the premises as tenants pursuant to a Residential Tenancy Agreement. 2 There has been a history of default in payment of rent under the agreement (inter alia cheques have been dishonoured). On 3 April 2000, the first defendant brought an application before the Residential Tribunal. On 19 April 2000, orders were made for termination and possession. The orders provided for possession to be given on 19 May 2000. 3 On 26 April 2000, the plaintiff applied for a re-hearing. The application was not granted. On 16 May 2000, he made a further application for re-hearing. This application was also not granted. 4 In May 2000, he made yet a further application. In that application a number of orders were sought (including an extension of time for the vacation of the premises). After a hearing, on 25 May 2000 the Tribunal extended the time for the vacation of the premises until 12 June 2000. 5 The plaintiff then brought proceedings in this Court. He obtained a stay (on terms). An Amended Summons was filed on 26 June 2000. In effect, it seeks to have set aside the order made by the Tribunal on 25 May 2000. This was in fact the order which had extended the time to vacate the premises. 6 The Summons was fixed for hearing to take place on 15 August 2000. It has been treated as an appeal from the decision of the Tribunal requiring him to give up possession of the premises. The plaintiff appeared in person. The first defendant appeared by a solicitor ( Maya Nanayakkara). 7 The parties were given an opportunity to put their respective cases. Largely, this involved brief oral argument. Upon hearing what the parties wanted to say, the parties were informed that judgment would be reserved to enable the court to undertake a perusal of all of the relevant material. Subsequently, that task was performed. 8 The plaintiff is an optometrist and conducts his business from the premises. There is no dispute that there has been default in payment of rent. The plaintiff blames the default on Medicare (which is apparently at least a principal provider of his income) and its slow payment of moneys due to him. The substance of his position is that he does not dispute that the first defendant was entitled to have the agreement terminated. However, he is upset at the way in which the first defendant and/or his agent went about doing it. He contends that he was given the impression that the lease would be renewed and that the first defendant then changed his mind. Other matters were mentioned during submissions, but nothing that was said threw up matters which were of assistance to him in these proceedings. 9 The decision of the Tribunal is final. The area of challenge is restricted to an appeal on a question of law. During the hearing of the appeal, the plaintiff was reminded that it was incumbent upon him to demonstrate such an error if he was to be entitled to relief. The plaintiff has been unable to demonstrate any error of law. The decision of the Tribunal in terminating the agreement and making an order for possession was open to it. In my view, it was the correct decision. For completeness, it may be added that the actual relief sought in the Summons is in fact misconceived. In its terms, it merely seeks to challenge the order that was made in favour of the plaintiff extending the time for the vacation of the premises. 10 The plaintiff bears the onus of demonstrating an entitlement to the relief that is sought. This onus has not been discharged. Accordingly, his claim for relief must fail. 11 The Summons is dismissed. The plaintiff is to pay the costs of the Summons. **********